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					The Legislative Process and the Courts


            25 November 2010
                    Announcements
• Former House Majority Leader Tom Delay convicted of money-
  laundering
                  Committee System

•   Standing Committee (exist from one Congress to the next)
•   Fixed jurisdiction and stable membership =specialization
•   Bills are assigned to committees on the basis of subject matter
•   Committee’s jurisdiction usually parallel those of the major
    departments or agencies in the executive branch.
•   Each committee is unique
•   Each committee’s hierarchy is based on seniority
            Why have committees?
        Theories of Committee Formation
• Informational Theory
   – Addresses the need for expertise
• Distributive Theory
   – Satisfies members personal goals
                 Types of Committees

• See Table 9.1 “Standing Committees of the 110th Congress”
  p.245.
• Or visit the House website
                   The Legislative Process

• A bill is introduced by a member (only a member). Although bills
  are introduced only by members, anyone may draft them.
  Executive agencies and lobby groups often prepare bills for
  introduction to friendly legislators.
• The Speaker assigns the bill to a committee (In the House). In the
  Senate, the majority leader assigns the bill to the appropriate
  standing committee
• Committee jurisdictions are largely fixed; All bills dealing with a
  given substantive area are automatically sent to that committee.
• However with health care reform, three committees will deal with
  the issue: Energy & Commerce (Subcommittee on Health),
  Education & Labor and Ways & Means
                 Assignment to Committee

• After a bill is introduced, it is assigned a number and referred to a
  committee.
• Once a bill has been referred to a committee, the most common
  thing that happens next is NOTHING.
• Most bills die of neglect.
• If a committee decides on further action, the bill may be taken up
  directly by the full committee, but more commonly it is referred to
  the appropriate subcommittee.
                          Committees

• In committee, the bill goes to a subcommittee (here the real work
  begins)
• The subcommittee decides whether to consider the bill
• If so, hearings are held. In a hearing, typically members of the
  executive branch and members of interest groups are invited to
  testify, though individuals can also testify
                   The Purpose of Hearings

•   Congress listens
•   Often a fair hearing is sufficient
•   Lobbyists can show their bosses that they tried
•   Hearings outside of Washington may be for the sole purpose of
    campaigning
•   Let the locals and journalists see their congressman
•   Hearings don’t have to be for legislation; they can be oversight of
    the bureaucracy
•   They can be to gather information for possible future legislation
•   They can be to get attention to an idea that has not yet won
    majority support
                        Rules Committee

• Control over procedure is control over policy. If you control the
  parliamentary procedure, you can often influence the outcome
• It gets a "rule" for debate in the House floor these rules specify
  how much time can be spent debating the bill and how many
  amendments can be added to the bill, amendments to what
  sections, in what order, ect.. This is a very political process
• What amendments, how long is debate, the order of motions,
  amendments, etc.
• Rules rarely stampedes large blocs of members (more subtle
  twists are more common).
• In the bad old days when Rules was independent of party
  leadership (pre-1961), the Rules Comm. regularly killed bills by
  refusing to grant them rules (esp. Civil Rights)
• Rules is now an arm of the leadership
Example of a Rule
                    Voting on Legislation

• Scheduling
   – House calendar--all major public measures (for current House
     floor proceedings see Office of the Clerk)
   – Consent calendar (non-controversial bills)
   – Private calendar (immigration requests or claims against the
     gov)
• Rules for Debate
   – If there is an open rule, opponents may try to load down a bill
     with so many objectionable amendments that it will sink of its
     own weight.
   – The rules committee may also give the bill a "non-germane"
     open rule, meaning that irrelevant amendments can be added
     to the bill, which would practically kill the bill
   – the reverse strategy is to propose "sweetner" amendments
     that attract members' support
• Debate and Vote upon on the floor, with amendments, ect.
               Scheduling Debate (Senate)

• The Senate does not have a Rules Committee.
• Thus, the leaders of both parties routinely negotiate unanimous
  consent agreements (UCA’s) to arrange for the orderly
  consideration of legislation.
• UCA’s are similar to rules in that they limit time for debate,
  determine which amendments are allowable, and provide waivers
  of Senate rules. In the absence of a UCA, anything goes.
                   Process in the Senate

• Compared to the larger House which needs and adheres to well-
  defined rules, the Senate operates more informally
• In the Senate, filibusters (extended debates) are common, which
  members can effectively engage in to kill a bill
• Filibusters can be stopped by cloture which requires 60 votes
  (3/5ths called an extraordinary majority)
• Several days ago (on 21 Nov), the Senate passed a motion to end
  the filibuster and begin debate on health care reform. The motion
  passed by 60 to 39 votes.
                   Conference Committee

• If passed it goes to the other house it may start over. More often,
  parallel bills have been working through
• The parallel bills go to conference committee. This is an ad-hoc
  committee which is solely created to resolve the differences
  concerning a specific bill
• Equal numbers of each; in proportion to party. They debate and
  may vote out a compromise bill
• If passed, the bill goes to both houses for a vote
                         The President

• He may sign it or veto it
• Holding it for 10 days while congress is in session is the same as
  signing
• Holding it for 10 days during which congress adjourns is a "pocket
  veto", which cannot be overridden
• to override a veto, 2/3's of both houses is required
The Process Reviewed
           The Courts—The Third Branch

• Powerful, but not democratic
• Supreme Court has nine unelected judges appointed for life and
  are independent from one another
• Responsive?
• Accountable?
            Power of the Supreme Court

• Originally intended to interpret the constitution
• Principal of Judicial Review
   – Invoked in Marbury vs. Madison (1803)
   – Allows judges appointed for life the authority to negate laws
      passed by elected representatives.
• This gives the court a great deal of power which was not made
  explicit under the Constitution.
• Now that the Courts have the power, how can it be constrained?
                  Limitations on power

• Courts are reactive (can only hear cases brought before them)
• Limited by the ability of Congress and the president to write new
  laws (or constitutional amendments)
• Lack of enforcement
• Public opinion
     The Structure of the Federal Judiciary

•   Only the Supreme Court is explicitly mentioned in the
    Constitution (Article III).
•   Nature of the judiciary beyond the Supreme Court deferred to
    Congress.
•   Judiciary Act of 1789 - created the federal judiciary.
•   The federal judiciary is organized as a three-layered pyramid.
                      The Supreme Court

•   The Supreme Court is the court of final appeal.
•   Under its appellate jurisdiction, the Court may hear cases
    appealed from the lower courts or directly from the highest state
    courts when an important constitutional question is in dispute.
•   Decision on which cases to accept is based on the Rule of Four.
                        Deciding Cases

• Do judges interpret laws or make policy?
• English Common law and the principle of stare decisis, “let the
  decision stand”
• Judicial restraint vs. judicial activism
                    Bush v. Gore (2000)

• Supreme Court decides the 2000 Presidential Election
• By a vote of 7-2, the Court held that the Florida Supreme Court's
  scheme for recounting ballots was unconstitutional, and by a vote
  of 5-4, the Court held that no alternative scheme could be
  established within the time limits established by Florida
  Legislature
• Equal Protection of the laws (14th Amendment):
• The state-wide standard (that a "legal vote" is one in which there
  is a 'clear indication of the intent of the voter’.
• No guarantee that each county would count the votes the same
  way.
               Checks on the Judiciary

• Executive Checks
   – Appointments
• Legislative Checks
   – Appropriation of funds
   – Constitutional amendments
   – Amending laws to overturn court’s rulings
• Public Opinion
   – Influence judicial opinions
   – enforcement
• The Court
   – stare decisis
   – Judicial restraint
                         Civil Liberties

• Civil liberties are Constitution’s protections from government power.
• Freedom of speech, religion and the right to privacy are examples.
• Typically violations of these liberties occur when some government
  agency, at any level, oversteps its authority.
             Who protects civil liberties?

• Does the constitution guarantee certain absolute civil liberties?
• Truth is that interpretations of these freedoms constantly change.
• Question of how to balance individual liberties with societal rights
               Cases Involving Civil Liberties

• Free Speech, Schenck v. United States (1919)
   – clear and present danger
• Freedom of Press, New York Times v. Sullivan (1964)
   – Libel violates 1st Amendment
• Obscenity, Roth v. United States (1957)
   – Court attempts to define obscenity
• Establishment Clause, Lemon v. Kurtzman (1971)
   – Three part test for judging constitutionality of division between
     church and state
• Gun Control, United States v. Miller (1939)
   – 2nd Amendment does not provide for absolute guarantee
• Right to Privacy, Roe v. Wade (1973)
   – Landmark case on abortion
                    The Patriot Act –
                A Threat to Civil Liberties?

• Change in protections from unreasonable search and seizure
• Detention of non-citizens, immigrants
• Racial profiling

				
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